Lankford v. Idaho/Opinion of the Court

We granted certiorari to decide whether the sentencing process followed in this capital case satisfied the requirements of the Due Process Clause of the Fourteenth Amendment. More narrowly, the question is whether, at the time of petitioner's sentencing hearing, he and his counsel had adequate notice that the judge might sentence him to death.

The unique circumstance that gives rise to concern about the adequacy of the notice in this case is the fact that, pursuant to court order, the prosecutor had formally advised the trial judge and the petitioner that the State would not recommend the death penalty. To place this circumstance in proper perspective, it is necessary to relate the procedural history of the case.

On or about June 21, 1983, Robert and Cheryl Bravence were killed at their campsite near Santiam Creek, Idaho. On December 1, 1983, the State filed an information charging petitioner with the crime of first-degree murder. The first count alleged that Robert Bravence had been beaten to death and the second count alleged that Cheryl Bravence had been killed in the same way. Identical charges were also filed against petitioner's older brother, Mark. At the arraignment, the trial judge advised petitioner that "the maximum punishment that you may receive if you are convicted on either of the two charges is imprisonment for life or death." App. 14.

After the arraignment, petitioner's appointed counsel entered into plea negotiations with the prosecutor. During these negotiations, petitioner agreed to take two lie-detector tests. Although the results of the tests were not entirely satisfactory, they convinced the prosecutor that petitioner's older brother Mark was primarily responsible for the crimes and was the actual killer of both victims. Id., at 193. The parties agreed on an indeterminate sentence with a 10-year minimum in exchange for a guilty plea, subject to a commitment from the trial judge that he would impose that sentence. In February 1984, the judge refused to make that commitment. In March, the case went to trial. The State proved that petitioner and his brother Mark decided to steal their victims' Volkswagen van. Petitioner walked into the Bravences' campsite armed with a shotgun and engaged them in conversation. When Cheryl left and went to a nearby creek, Mark entered the campsite, ordered Robert to kneel down, and struck him on the head with a nightstick. When Cheryl returned, Mark gave her the same order, and killed her in the same manner. See State v. Lankford, 113 Idaho 688, 691, 747 P.2d 710, 713 (1987).

Petitioner testified in support of a defense theory that he was only an accessory after the fact. The jury was instructed, however, that evidence that petitioner "was present, and that he aided and abetted in the commission of the crime of robbery" was sufficient to support a conviction for first-degree murder. App. 16.  The trial judge refused to instruct the jury that a specific intent to kill was required. The jury found petitioner guilty on both counts.

At the prosecutor's request, the sentencing hearing was postponed until after the separate trial of petitioner's brother was concluded. The sentencing was first set for June 28, 1984, and later reset for October 1984. In the interim, pursuant to petitioner's request, on September 6, 1984, the trial court entered an order requiring the State to notify the court and the petitioner whether it would ask for the death penalty, and if so, to file a statement of the aggravating circumstances on which it intended to rely. A week later, the State filed this negative response:

"COMES NOW, Dennis L. Albers, in relation to the Court's     Order of September 6, 1984, and makes the following response.

"In relation to the above named defendant, Bryan Stuart     Lankford, the State through the Prosecuting Attorney will not be recommending the death penalty as to      either count of first degree murder for which the defendant      was earlier convicted." Id., at 26 (emphasis in original).

In the following month there was a flurry of activity. The trial court granted petitioner's pro se request for a new lawyer, denied that lawyer's motion for a new trial based on the alleged incompetence of trial counsel, denied a motion for a continuance of the sentencing hearing, and denied the new lawyer's request for a typewritten copy of the trial transcript. In none of these proceedings was there any mention of the possibility that petitioner might receive a death sentence.

At the sentencing hearing on October 12, 1984, there was no discussion of the death penalty as a possible sentence. The prosecutor offered no evidence. He relied on the trial record, explained why he had not recommended the death penalty, and ultimately recommended an indeterminate life sentence with a minimum of "somewhere between ten and 20 years." Id., at 104. The defense put on a number of witnesses who testified that petitioner was a nonviolent person, but that he was subject to domination by his brother Mark, who had violent and dangerous propensities. Id., at 95-97. In her argument in mitigation, defense counsel stressed these facts, as well as the independent evidence that Mark was the actual killer. She urged the Court to impose concurrent, indeterminate life sentences, which would make petitioner eligible for parole in 10 years, less the time he had already served. She argued against consecutive indeterminate sentences which would have amounted to a 20-year term, or a fixed-life term that would have amounted to a 40-year minimum. She made no reference to a possible death sentence.

At the conclusion of the hearing, the trial judge made a rather lengthy statement in which he indicated that he considered petitioner's testimony unworthy of belief and that the seriousness of the crime warranted more severe punishment than that which the State had recommended. Id., at 114-118. At the beginning of this lengthy statement, he described the options available to the court, including the indeterminate life sentence recommended by the State, "or a fixed life sentence for a period of time greater than the number of years he would serve on an indeterminate life sentence, i.e., ten. For example, a fixed term of 40 years or death or a fixed life sentence." Id., at 114. He concluded by saying that he would announce his decision on the following Monday.

On that Monday, the trial judge spent the entire day conducting the sentencing hearing in Mark's case. At 9:38 p.m., he reconvened petitioner's sentencing hearing. After a preliminary colloquy, he read his written findings and sentenced petitioner to death. These findings, some of which were repeated almost verbatim in his later order sentencing Mark to death, repeatedly reflected the judge's opinion that the two brothers were equally culpable.

Petitioner sought postconviction relief on a variety of grounds, including a claim that the trial court violated the Constitution by failing to give notice of its intention to impose the death sentence in spite of the State's notice that it was not seeking the death penalty. Id., at 168. The trial court held that the Idaho Code provided petitioner with sufficient notice and that the prosecutor's statement that he did not intend to seek the death penalty had "no bearing on the adequacy of notice to petitioner that the death penalty might be imposed." Id., at 200. Petitioner's request for relief on this claim was therefore denied. Id., at 201.

In a consolidated appeal, the Idaho Supreme Court affirmed petitioner's conviction and sentence and also affirmed the denial of postconviction relief. On the notice issue, the Court concluded that the express advice given to petitioner at his arraignment, together with the terms of the statute, were sufficient. State v. Lankford, 113 Idaho, at 697, 747 P.2d, at 719.

One Justice dissented from the affirmance of petitioner's sentence. Id., at 705, 747 P.2d, at 727. Relying on the absence of any contention that petitioner struck any of the fatal blows, and the fact that the evidence concerning petitioner's intent was equivocal, he concluded that the sentence was invalid under our decisions in Enmund v. Florida and Tison v. Arizona,  as well as under the Idaho cases that the majority had considered in its proportionality review.

This Court granted certiorari, vacated the judgment, and remanded the case to the Idaho Supreme Court for further consideration in light of Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988); 486 U.S. 1051 108 S.Ct. 2815, 100 L.Ed.2d 917 (1988). On remand, by a vote of 3 to 2, the court reinstated its earlier judgment. 116 Idaho 279, 775 P.2d 593 (1989). We again granted certiorari, 498 U.S., 111 S.Ct. 292, 112 L.Ed.2d 247 (1990), to consider the question raised by the trial court's order concerning the death penalty and the State's response thereto.

Before discussing the narrow legal issue raised by the special presentencing order and the State's response, it is useful to put to one side certain propositions that are not in dispute in this case. As a matter of substantive Idaho law, the trial judge's power to impose a sentence that is authorized by statute is not limited by a prosecutor's recommendation. Thus, petitioner does not argue that the State made a formal waiver that limited the trial judge's authority to impose the death sentence. The issue is one of adequate procedure rather than of substantive power. Conversely, the State does not argue that a sentencing hearing would be fair if the defendant and his counsel did not receive adequate notice that he might be sentenced to death. The State's argument is that the terms of the statute, plus the advice received at petitioner's arraignment, provided such notice. This argument would plainly be correct if there had not been a presentencing order, or if similar advice had been given after petitioner received the State's negative response and before the sentencing hearing commenced.

As a factual matter, it is also undisputed that the character of the sentencing proceeding did not provide the petitioner with any indication that the trial judge contemplated death as a possible sentence. A hearing to decide whether the sentences should be indeterminate or fixed, whether they should run concurrently or consecutively, and what period of imprisonment was appropriate, would have proceeded in exactly the same way as this hearing did. Indeed, it is apparent that the parties assumed that nothing more was at stake. There is nothing in the record after the State's response to the presentencing order and before the trial judge's remark at the end of the hearing that mentioned the possibility of a capital sentence. During the hearing, while both defense counsel and the prosecutor were arguing the merits of concurrent or consecutive, and fixed or indeterminate, terms, the silent judge was the only person in the courtroom who knew that the real issue that they should have been debating was the choice between life or death.

The presentencing order entered by the trial court requiring the State to advise the court and the defendant whether it sought the death penalty, and if so, requiring the parties to specify the aggravating and mitigating circumstances on which they intended to rely, was comparable to a pretrial order limiting the issues to be tried. The purpose of such orders is to eliminate the need to address matters that are not in dispute, and thereby to save the valuable time of judges and lawyers. For example, if the State had responded in the affirmative and indicated an intention to rely on only three aggravating circumstances, the defense could reasonably have assumed that the evidence to be adduced would relate only to those three circumstances, and therefore, the defense could have limited its preparation accordingly. Similarly, in this case, it was surely reasonable for the defense to assume that there was no reason to present argument or evidence directed at the question whether the death penalty was either appropriate or permissible. Orders that are designed to limit the issues would serve no purpose if counsel acted at their peril when they complied with the orders' limitations.

It is, of course, true that this order did not expressly place any limits on counsel's preparation. The question, however, is whether it can be said that counsel had adequate notice of the critical issue that the judge was actually debating. Our answer to that question must reflect the importance that we attach to the concept of fair notice as the bedrock of any constitutionally fair procedure. Justice Frankfurter eloquently made this point in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817 (1951):

"Representing a profound attitude of fairness between man and     man, and more particularly between the individual and      government, 'due process' is compounded of history, reason,      the past course of decisions, and stout confidence in the      strength of the democratic faith which we profess.  Due      process is not a mechanical instrument.  It is not a      yardstick.  It is a process.  It is a delicate process of      adjustment inescapably involving the exercise of judgment by      those whom the Constitution entrusted with the unfolding of      the process." Id., at 162-163, 71 S.Ct., at 643-644     (concurring opinion).

"The heart of the matter is that democracy implies     respect for the elementary rights of men, however suspect or      unworthy;  a democratic government must therefore practice      fairness;  and fairness can rarely be obtained by secret,      one-sided determination of facts decisive of rights." Id.,     at 170, 71 S.Ct., at 647-648 (footnote omitted).

"Man being what he is cannot safely be trusted with     complete immunity from outward responsibility in depriving      others of their rights.  At least such is the conviction      underlying our Bill of Rights.  That a conclusion satisfies      one's private conscience does not attest its reliability.      The validity and moral authority of a conclusion largely      depend on the mode by which it was reached.  Secrecy is not      congenial to truth-seeking and self-righteousness gives too      slender an assurance of rightness.  No better instrument has      been devised for arriving at truth than to give a person in      jeopardy of serious loss notice of the case against him and      opportunity to meet it.  Nor has a better way been found for      generating the feeling, so important to a popular   government, that      justice has been done." Id., at 171-172, 71 S.Ct., at     648-649 (footnote omitted).

If defense counsel had been notified that the trial judge was contemplating a death sentence based on five specific aggravating circumstances, presumably she would have advanced arguments that addressed these circumstances;  however, she did not make these arguments because they were entirely inappropriate in a discussion about the length of petitioner's possible incarceration. Three examples will suffice to illustrate the point.

One of the arguments that petitioner's counsel could have raised had she known the death penalty was still at issue pertained to a concern voiced by the dissenting Justice in the Idaho Supreme Court, who was troubled by the question whether Bryan Lankford's level of participation met the standard described in Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), and several Idaho cases. The dissenting Justice described the majority'sopinion as having mischaracterized the trial court's findings as to Bryan Lankford's state of mind. State v. Lankford, 113 Idaho 688, 706, 747 P.2d 710, 728 (1987). The factual dispute over the record, combined with the dissenting Justice's reliance on Idaho cases, demonstrates that petitioner failed to make an argument that, at least as a matter of state law, might have influenced the trial judge's deliberations. There was, however, no point in making such an argument if the death penalty was not at issue.

One of the aggravating circumstances that the trial judge found as a basis for his sentence was that the "murders of the Bravences were especially heinous, atrocious or cruel, and manifested exceptional depravity." App. 156-157. Even if petitioner had been the actual killer, it is at least arguable that the evidence was insufficient to support this finding. If petitioner was not the actual killer, this finding was even more questionable. The point, however, is that petitioner's counsel had no way of knowing that the court was even considering such a finding, and therefore, she did not discuss that possibility at the sentencing hearing. It is unrealistic to assume that the notice provided by the statute and the arraignment survived the State's response to an order that would have no purpose other than to limit the issues in future proceedings.

In view of the fact that the trial judge's sentence appears to rest largely on his disbelief of petitioner's testimony and consequent conclusion that he was just as culpable as his brother, the omission of certain factual evidence takes on special significance. In her postconviction motion, petitioner's counsel represented that the results of two polygraph examinations demonstrated that petitioner was truthful in his testimony concerning "his lack of participation in, or knowledge of, the killings." App. 170. Such evidence is inadmissible in Idaho in an ordinary case and therefore, appropriately, was not offered at the sentencing hearing. Petitioner argues, however, that under the teaching of our decision in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), such evidence would be admissible in a capital sentencing proceeding. Whether petitioner would ultimately prevail on this argument is not at issue at this point; rather, the question is whether inadequate notice concerning the character of the hearing frustrated counsel's opportunity to make an argument that might have persuaded the trial judge to impose a different sentence, or at least to make different findings than those he made.

At the very least, this is a case in which reasonable judges might differ concerning the appropriateness of the death sentence. It is therefore a case in which some of the reasoning that motivated our decision in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), is applicable. In that case, relying partly on the Due Process Clause of the Fourteenth Amendment and partly on the Eighth Amendment's prohibition against cruel and unusual punishment, the Court held that a procedure for selecting people for the death penalty that permits consideration of secret information about the defendant is unacceptable. The plurality opinion, like the opinion concurring in the judgment, emphasized the special importance of fair procedure in the capital sentencing context. We emphasized that "death is a different kind of punishment from any other which may be imposed in this country." Id., at 357, 97 S.Ct., at 1204. We explained: "From the point of view of the defendant, it is  different in both its severity and its finality.  From   the point of view of society, the action of the   sovereign in taking the life of one of its citizens also   differs dramatically from any other legitimate state   action.  It is of vital importance to the defendant and   to the community that any decision to impose the death   sentence be, and appear to be, based on reason rather   than caprice or emotion." Id., at 357-358, 97 S.Ct., at  1204.

Although the trial judge in this case did not rely on secret information, his silence following the State's response to the presentencing order had the practical effect of concealing from the parties the principal issue to be decided at the hearing. Notice of issues to be resolved by the adversary process is a fundamental characteristic of fair procedure.

Without such notice, the Court is denied the benefit of the adversary process. As we wrote in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):

"A capital sentencing proceeding like the one involved in     this case . . . is sufficiently like a trial in its      adversarial format and in the existence of standards for      decision . . . that counsel's role in the proceeding is      comparable to counsel's role at trial—to ensure that the      adversarial testing process works to produce a just result      under the standards governing decision." Id., at 686-687,     104 S.Ct., at 2064.

Earlier, in Gardner, we had described the critical role that the adversary process plays in our system of justice:

"Our belief that debate between adversaries is often     essential to the truth-seeking function of trials requires us      also to recognize the importance of giving counsel an      opportunity to comment on facts which may influence the      sentencing decision in capital cases." 430 U.S., at 360, 97     S.Ct., at 1206.

If notice is not given, and the adversary process is not permitted to function properly, there is an increased chance of error, see, e.g., United States v. Cardenas, 917 F.2d 683, 688-689 (CA2 1990), and with that, the possibility of an incorrect result. See, e.g., Herring v. New York, 422 U.S. 853, 862, 95 S.Ct. 2550, 2555, 45 L.Ed.2d 593 (1975) ("The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free"). Petitioner's lack of adequate notice that the judge was contemplating the imposition of the death sentence created an impermissible risk that the adversary process may have malfunctioned in this case.

The judgment of the Idaho Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.